320 F.

3d 472

Efrain Modesto CALLE-VUJILES, Petitioner

v.
John ASHCROFT, Attorney General of the United States,
Respondent
No. 02-2261.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) February 4, 2003.
Filed March 5, 2003.

Before SLOVITER, RENDELL and STAPLETON, Circuit Judges.

OPINION OF THE COURT
STAPLETON, Circuit Judge.

Efrain Modesto Calle-Vujiles ("the Petitioner") petitions this court for review
of the Board of Immigration Appeals' ("the BIA") decision denying the
Petitioner's motion to reconsider its decision dismissing his appeal. He also
petitions for review of the BIA's failure to sua sponte reopen his deportation
proceedings so that he may adjust his status.

I.
2

The Petitioner, a citizen of Ecuador, illegally entered the United States without
inspection in 1990. The INS took him into custody in 1991, interviewed him,
and on his release, the INS issued the Petitioner an Order to Show Cause
("OSC"). The OSC stated that the Petitioner would be required to appear before
an Immigration Judge "on the date and time to be set" in order to "show
why[he] should not be deported." Addendum at 2. There is some disagreement
about whether the Petitioner was informed of the OSC's contents in Spanish,
the only language he understands. The Petitioner changed his place of residence
between the time he was issued the OSC and the time that the Hearing Notice
was sent to his address of record. The Petitioner failed to appear at the
scheduled hearing and was ordered deported to Ecuador, in absentia, pursuant
to the now-repealed INA 242(b). 8 U.S.C. 1252(b) (1988).

The Petitioner moved to reopen deportation proceedings in January, 1997,

asserting lack of notice of the deportation proceeding that resulted in the in
absentia order. The Immigration Judge denied the motion. On June 29, 2000,
the BIA dismissed the Petitioner's appeal.

The Petitioner petitioned this court for review, asserting that he was denied due
process because he did not receive adequate notice of the deportation
proceeding. We denied the Petitioner's first petition for review. We noted that
the Petitioner was personally served with the OSC, provided with the address
of the immigration court, and the Hearing Notice was sent to his address of
record. We concluded that the service of process on the Petitioner was
consistent with due process and denied the petition for review. Addendum at 16.

On August 3, 2001, more than a year after the BIA's decision dismissing the
Petitioner's appeal, the Petitioner filed a motion with the BIA asking it to
reconsider the BIA's decision and to reopen the deportation proceedings. The
Petitioner based his motions on the BIA decisions in In re M-S-, 22 I. & N.
Dec. 349 (BIA 1998), and In re G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001). The
BIA denied the motions as time-barred under 8 C.F.R. 3.2(b)-(c). The BIA
also noted that the decision relied upon in the Petitioner's motion to reopen, In
re M-S-, "was based on the statutory requirements of section 242B of the
Immigration and Nationality Act, and is therefore inapplicable to the
respondent's situation since he was ordered deported under section 242(b) of
the Act rather than 242B."

The Petitioner, again, petitions this court for review of the BIA's decision. He
argues, inter alia, that it was a violation of due process for the BIA to fail to
exercise its discretion to sua sponte reopen the deportation proceedings or
reconsider its prior decision. The INS responds, inter alia, that we are without
jurisdiction to review the BIA's decision to decline to sua sponte reopen or
reconsider the proceedings.

II.
7

Subsections 3.2(b) and (c) of Title 8 of the Code of Federal Regulations bar
motions to reconsider and reopen that are not timely filed. Motions to
reconsider must be filed within 30 days of the BIA decision. 8 C.F.R. 3.2(b).
Motions to reopen must be filed no later than 90 days after the date in which the
final administrative decision was rendered. 8 C.F.R. 3.2(c). Here, the BIA
issued its final decision on June 29, 2000. The Petitioner moved to reconsider
and reopen on August 3, 2001, well after the time had expired for doing so.

Subsection 3.2(a) of the Regulations, however, allows the BIA to reopen or

reconsider a case sua sponte at any time. It provides:

(a) General. The Board may at any time reopen or reconsider on its own motion
any case in which it has rendered a decision. A request to reopen or reconsider
any case in which a decision has been made by the Board, which request is
made by the Service, or by the party affected by the decision, must be in the
form of a written motion to the Board. The decision to grant or deny a motion to
reopen or reconsider is within the discretion of the Board, subject to the
restrictions of this section. The Board has discretion to deny a motion to reopen
even if the party moving has made out a prima facie case for relief.

10

Id.

11

Generally, the BIA is allowed to reopen or reconsider a case sua sponte in

"exceptional situations." In re J-J-, 21 I. & N. Dec. 976 (BIA 1997).

12

As the Court of Appeals for the First Circuit observed in Luis v. I.N.S., 196
F.3d 36 (1st Cir.1999), "the decision of the BIA whether to invoke its sua
sponte authority is committed to its unfettered discretion. Therefore, the very
nature of the claim renders it not subject to judicial review." Id. at 40.
Similarly, the Ninth Circuit Court of Appeals held in Ekimian v. I.N.S., 303
F.3d 1153 (9th Cir.2002), that it "lack[ed] jurisdiction to review a BIA decision
not to reopen the proceeding sua sponte under 8 C.F.R. 3.2(a)." Id. at 1154.
Finally, in Anin v. Reno, 188 F.3d 1273 (11th Cir.1999), the Eleventh Circuit
Court of Appeals concluded that " 3.2(a) gives the BIA non-reviewable
discretion to dismiss [a petitioner's] claim." Id. at 1279.

13

The view that decisions not to sua sponte reopen or reconsider are nonreviewable is based on Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84
L.Ed.2d 714 (1985). That was a case in which a group of death row inmates
demanded that the FDA enforce provisions of the Food, Drug, and Cosmetic
Act, so as to prohibit the "misuse" of certain drugs in executing inmates by
lethal injection. It held that courts have no jurisdiction to review matters
"committed" to the agency's discretion, including matters where the governing
"statute is drawn so that a court would have no meaningful standard of review
against which to judge the agency's exercise of discretion." Id. at 830.

14

The Petitioner insists that the above-cited cases are mistaken in applying
Heckler to the immigration context because Heckler dealt only with review of
agency enforcement actions under the Administrative Procedure Act ("APA").

The Petitioner argues that, by contrast, the proceeding here is an immigration

adjudication where the BIA has decided that sua sponte reopening is allowed in
"exceptional situations." According to the Petitioner, this standard enables our
court to review such decisions for an abuse of discretion.
15

Although we are mindful that there is a strong presumption that Congress

intends judicial review of administrative action, Chmakov v. Blackman, 266
F.3d 210 (3d Cir.2001), we reject the Petitioner's arguments. The lesson of
Heckler v. Chaney is that "review is not available in those rare circumstances
where the relevant statute is so drafted that a court would have no meaningful
standard against which to judge the agency's exercise of discretion." M.B. v.
Quarantillo, 301 F.3d 109, 112 (3d Cir.2002) (internal quotations omitted).
Here, the regulation providing for reopening or reconsidering a case sua sponte
offers no standard governing the agency's exercise of discretion. As the court in
Anin noted:

16

[8 C.F.R. 3.2(a) (1999)] reposes very broad discretion in the BIA "to reopen
or reconsider" any motion it has rendered at any time or, on the other hand, "
[to] deny a motion to reopen." Id. The discretion accorded in this provision is so
wide that "even if the party moving has made out a prima facie case for relief,"
the BIA can deny a motion to reopen a deportation order. Id. No language in
the provision requires the BIA to reopen a deportation proceeding under any set
of particular circumstances. Instead, the provision merely provides the BIA the
discretion to reopen immigration proceedings as it sees fit. Federal circuit
courts consistently have interpreted the provision in this way. They have read 8
C.F.R. 3.2(a) to give the BIA the discretion to reopen immigration
proceedings in situations where federal courts lack the legal authority to
mandate reopening.... In short, the provision gives the BIA non-reviewable
discretion to dismiss Anin's claim.

17

Anin, 188 F.3d at 1279 (citations omitted).

18

It is true that if an agency "announces and follows by rule or by settled

course of adjudication a general policy by which its exercise of discretion
will be governed," that exercise may be reviewed for abuse. M.B., 301 F.3d at
112. However, this is not the case here. As Ekimian notes, "in In re J-J-, the
BIA acknowledged only that 3.2(a) allows the Board to reopen proceedings in
exceptional situations; it did not hold that the regulation requires the Board to
reopen proceedings in exceptional situations." Ekimian, 303 F.3d at 1158. And
like Ekimian, our Petitioner has not pointed to one case defining "exceptional
situation" in the context of the BIA's sua sponte power under 3.2. Because the
BIA retains unfettered discretion to decline to sua sponte reopen or reconsider a

deportation proceeding, this court is without jurisdiction to review a decision

declining to exercise such discretion to reopen or reconsider the case.
III.
19

The petition for review will be dismissed for lack of appellate jurisdiction.